DQD19 v Minister for Immigration
[2023] FedCFamC2G 284
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQD19 v Minister for Immigration [2023] FedCFamC2G 284
File number(s): MLG 3191 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 20 April 2023 Catchwords: MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426B, 441A, 441C & 477
Migration Regulations 1994 (Cth)
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 13 April 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr A Slevison of Australian Government Solicitor ORDERS
MLG 3191 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQD19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
20 April 2023
THE COURT ORDERS THAT:
1.The Minister’s name is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
INTRODUCTION & BACKGROUND
The applicant in these proceedings (“the applicant”) is a 30-year-old citizen of Malaysia. He arrived in Australia on 14 July 2016 and lodged an application for a protection visa on 7 September 2016 (Court Book (“CB”) 33).
On 7 February 2017, a delegate of the then Minister for Immigration (“the delegate”) made a decision to not grant the applicant a protection visa (CB 56 to 64).
On 28 February 2017, the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for the review of the delegate’s decision. In his review application, the applicant nominated an email address for service of documents, and also provided a mobile number.
On 6 March 2018, the Tribunal emailed the applicant’s nominated email address inviting the applicant to attend a hearing on 17 April 2018 at 2.00 pm (CB 71). The applicant was advised that at this hearing he would be provided the opportunity to give evidence and present arguments relating to the issues in his case.
On 10 April 2018, an SMS was sent to the applicant’s nominated mobile number reminding him of the hearing date (CB 77).
By 11 April 2018, the Tribunal had not yet received any response from the applicant about the hearing invitation, despite the SMS reminder being sent the previous day (CB 78).
A further SMS reminder was sent to the applicant on 16 April 2018, the day before the scheduled hearing (CB 77).
At the Tribunal hearing on 17 April 2018 there was no appearance by or on behalf of the applicant (CB 79).
As a result of the applicant’s failure to attend the Tribunal hearing on 17 April 2018, the Tribunal made a decision (“the Non-Appearance Decision”) to dismiss the applicant’s review application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (“the Act”).
On 17 April 2018, the Tribunal emailed to the applicant’s email address a copy of the Non-Appearance Decision to dismiss the application and advised the applicant he could make an application within 14 days to have his review application reinstated.
The applicant did not apply for reinstatement. On 3 May 2018, the Tribunal made a decision to confirm the Non-Appearance Decision (the’ Confirmation Decision”) (CB 92), which by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.
On 23 September 2019, the applicant filed an application for judicial review of the Tribunal’s decision to dismiss his application in this Court.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. The applicant is 489 days out-of-time in relation to the Non-Appearance Decision (dated 17 April 2018), and 474 days out-of-time with respect to the Confirmation Decision (dated 3 May 2018).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act, to pursue his judicial review proceedings in this Court.
On 13 April 2023, the applicant’s extension of time application proceeded to an electronic hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Malay language was present to assist the applicant.
This Judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes that an extension of time should not be granted.
LEGAL PRINCIPLES
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court considers that it is in the interests of the administration of justice to do so.
In the present case, the applicant filed his Originating Application on 23 September 2019 seeking an extension of time, and provided therein the following “grounds” for why he believes an extension should be granted:
1.THE REASON I NEED TO EXTEND THE GIVEN TIME FRAME IS DUE TO FINANCIAL AND LANGUAGE ISSUES
2.EVEN I HAD ALREADY STAY IN AUSTRALIA FOR ALMOST 4 YEARS BUT I STILL FIND IT HARD TO FIND A JOB. FURTHERMORE IM ALSO FACING PROBLEM WITH LANGUAGE. THE LANGUAGE BARRIER MADE IT HARDER FOR ME TO FIND A JOB.
3.IN ADDITION, I’M ALSO HAVING THE PROBLEM TOWARDS LANGUAGE. THE LANGUAGE BARRIER MADE IT HARD FOR ME THE COLLECT THE ACCURATE INFORMATION REGARDING THE PROCESS OF REAPPEALING TO FCC. MOST INFORMATION IS GAINED THROUGH FROM FRIENDS, IN WHICH SOME INFORMATION IS NOT ACCURATE AND IT TOOKS TIME FOR ME TO COLLECT THE ACCURATE INFORMATION AND FOR ME TO MAKE THE BEST DECISION ON WHAT I SHOULD DO TO GET THE REAPPEALING OF MY APPLICATION. HENCE, THAT IS PART OF THE REASON ON WHY I’M NOT SUBMITTING THE FORM IN THE GIVEN TIMEFRAME.
4.DUE TO THE OBSTACLES THAT I’M FACING I WOULD LIKE TO REAPPEAL TO FCC FOR RECONSIDERATION AND FOR THE EXTENSION OF MY APPLICATION TIMEFRAME. I HOPE I CAN GET TO YOUR ATTENTION AND RECONSIDERATION REGARDING MY HARD SITUATION IN ORDER FOR ME TO GET MY EXTENSION TIME TO REAPPEAL FOR MY APPLICATION FROM THE FEDERAL CIRCUIT COURT.
(As per original)
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen[1] (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]) the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
[1] (1984) 3 FCR 344.
[2] [2022] HCA 28 (“Tu’uta Katoa”) at [12].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[3] Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[4]
[3] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392.
[4] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
To assist the applicant who, as noted, was unrepresented at the hearing on 13 April 2023, it was explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at.[5]
[5] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
CONSIDERATION
The materials before the Court include:
·The applicant’s Originating Application filed 23 September 2019;
·The applicant’s Affidavit filed in support of his Originating Application dated 23 September 2019;
·The first respondent’s Response filed 15 October 2019;
·The Court Book filed by the first respondent on 22 November 2021;
·The first respondent’s written Outline of Submission filed 3 April 2023;
·The first respondent’s List of Authorities filed 3 April 2023; and
·The first respondent’s Affidavit of Service filed 6 April 2023.
Noting the applicant was without legal assistance at the hearing before me, the Court went through with him the material before the Court.
The Court confirmed with the applicant that he had the Court Book and the Outline of Submissions of the first respondent. The matter was stood down for a period of time to allow the interpreter to interpret for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further he wished to say in respect of his application for an extension of time. The applicant’s responses, where relevant, will be included in my consideration of the factors below. The Court was satisfied that the applicant fully understood the proceedings and was able to properly participate in and follow the proceedings.
Length of delay
The Court notes that an extension of time is not granted as a right.[6] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[7]
[6] Gallo v Dawson [1990] HCA 30 at [2] per McHugh J.
[7] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 489 days out-of-time in relation to the Non-Appearance Decision and 474 days out-of-time in relation to the Confirmation Decision.
The delay here is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 3 April 2023 that the first respondent does not face any substantive prejudice if the extension was granted.
This weighs in favour of granting the extension of time.
Explanation for delay
The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[8]
[8] Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
The Affidavit filed in support of his judicial review application, does not provide any explanation for the delay in commencing the proceedings in his Court. In that affidavit, the applicant refers to both the Non-Appearance Decision and Confirmation Decision made by the Tribunal. It is in the Application where the applicant provides some detail as an explanation for delay.
With respect to the length of delay the applicant said to me that he could not attend the hearing because he was travelling from Perth to Melbourne and when he arrived in Melbourne he received the email from the Tribunal and therefore could not attend. He said that he couldn’t do anything about it at the time because he just arrived and did not know what to do. He conceded that he received the email but he said that there was nothing he can do so he just ignored it. He says that he ignored the phone message and by that time he didn’t have a valid visa and he was living with friends who had a valid visa and they were working and they helped him out and he helped them out.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant in this matter did not do that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of him.
The Court does not consider the explanations provided by the applicant to be satisfactory.
This weighs against granting an extension of time.
Merit
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows:
17.… it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”[9]. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed[10], that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.[11]
[9] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[10] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[11] Federal Court of Australia Act 1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 28 August 2019 includes the following grounds of review:
1.THE DECISION MADE BY AAT ON 17/04/2018 IS REFUSED TO GRANT A PROTECTION VISA. HENCE I WOULD LIKE TO REAPPEAL TO FCC TO REOPEN CASE BECAUSE AAT HAS NOT TREATED FAIRLY WHEN DISMISS MY APPLICATION.
2.I APPLY FOR PROTECTION VISA WHEN COME TO AUSTRALIA DUE TO FACING HAD CIRCUMSTANCES AND HAVING A DANGER THREATS TOWARDS MY LIFE. BACK IN MALAYSIA I WILL FACING GENUINE RISK BECAUSE OF MY FAMILY HAS BEEN THREATENED MYSELF DUE THEY NOT ACCEPT OF MY PARTNER AND ATTEMPTED TO PREVENT OUR TO GETTING MARRIED DUE OF RELIGION ISSUED.
3.AAT FULLY AWARE MY SAFETY CAN’T BE GRANTED IF I’M BACK IN MALAYSIA. BECAUSE LEGAL JUSTICE CAN’T PROTECT ME AT ALL TIME BUT AAT STILL NOT ACCEPT MY APPLICATION EVEN EXPLANATION GIVEN TO THEM. AAT MEMBER HAS NOT USED HIS DISCREATION AS THIS IS CLEARLY UNFAIR DECISION TO MY SELF.
4.ON 17/04/2018 I WAS UNABLE TO ATTEND HIRING SEASON DUE MY SELF WAS FACING ARE VERY HAD OF CIRCUMSTANCES ON THAT TIME. UNEXPECTED THING WAS HAPPEN TO MYSELF WHEN MY SON WAS INVOLVED IN ACCIDENT AND PASSED AWAY ONE WEEK BEFORE THE HEARING SCHEDULE WAS NOTIFIED AAT WITH SEND A LETTER TO POSTPONE THE HEARING DATE DUE FACING EXTREMELY DEPRESSED AND LOST CONSCIOUSNESS WITH THE INCIDENT HAPPEN.
5.AAT HAVEN’T RESPONDENT AND KEEP SEND ME REMINDER TO ATTEND THE HEARING. SINCE AAT DID NOT REPLY I HAD COMMUNICATE WITH DEPARTMENT OF HOME AFFAIRS BUT THEY KEEP AS ME TO REFER THE MATTER TO AAT. DEPARTMENT OF HOME AFFAIRS SHOULD HAVE TO ASSIST ME WITH THE APPLICATION DUE AAT NOT DONE THE RIGHT THING TO ME. DEPARTMENT OF HOME AFFAIRS ALSO NOT USE THEY DISCREATION AS THIS IS CLEARLY UNFAIR DECISION TO MY SELF.
6.THE REASON I AM NOT APPEAL TO REINSTATEMENT IN TIME FRAME GIVEN BECAUSE AAT MEMBER NOT DONE THE RIGHT THING WHILE MAKE A ERROR DECISION TO DISMISS MY APPLICATION EVEN THOUGH AAT FULLY AWARE THAT I HAVING GENUINE REASON FOR NOT ATTEND THE HEARING. THAT ARE THE FACT THEY NOT TAKE A RECONSIDERATION.
7.AAT DID NOT ACCEPT MY APPLICATION AND AAT WAS FULLY AWARE ON THE FACT THAT I HAVE LODGED AN APPLICATION FOR PROTECTION DO HAVING GENUINE FEAR MY LIFE IN MALAYSIA AND THAT INFORMATION IS CLEARLY STATE ON DEPARTMENT OF HOME AFFAIRS REFUSAL LETTER.
8.I WOULD LIKE TO REQUEST TO FCC TO SET ASIDE OLD ORDERS AND REPLACED BY NEW ORDERS AND ACCEPT MY APPLICATION FOR REVIEW AS A VALID APPLICATION AND DECIDE ON THIS MATTER AT FCC.
(As per original)
I gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in his application, and to outline otherwise, any concerns that he might have in relation to the Tribunal’s decisions.[12]
[12] This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
I requested the interpreter to interpret for the applicant, the information contained at paragraph 4 of his application. I then asked the applicant if he had a letter where he notified the AAT to postpone the hearing date. He responded “no”.
The applicant’s oral submission did not raise any allegation of jurisdictional error or any issue of the sort that this Court can address.
However, in its duty to assist self-represented litigants, the Court will consider for itself whether any arguable case of error arises in the Tribunal’s decision.[13]
[13] MZAIB [59] - [77].
Having regard to the grounds of review contained in the applicant’s application and having regard to the nature of the decisions under review, I propose to consider the following issues:
(a)Whether the applicant was properly invited to attend the Tribunal hearing;
(b)Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and
(c)Whether the Tribunal erred by confirming the decision to dismiss the application.
For completeness, I first set out the Tribunal’s decisions.
The Tribunal’s Decision
The Non-Appearance Decision
The Non-Appearance Decision dated 17 April 2018 provides (CB 89):
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 17 April 2018 at 2:00pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further reminders to the mobile telephone number nominated by the review applicant about the hearing. One of these reminders was sent five business days and the other was sent on the business day before the scheduled hearing. The second of these SMS reminders registered a delivery failure fault.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. When the review applicant did not appear before the Tribunal at the scheduled place and time, the Tribunal attempted to contact is nominated mobile telephone number without success. No satisfactory reason for the non-appearance has been given.
3. In these circumstances the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(As per original)
The Confirmation Decision
The Confirmation Decision dated 2 May 2018 provides (CB 94):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the minister for Immigration on 8 February 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 17 April 2018 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 ay period would result in confirmation of the dismissal decision
4.As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5.The Tribunal confirms the decision to dismiss the application.
Whether the applicant was properly invited to attend the Tribunal hearing
As noted above, the applicant did not attend the Tribunal hearing scheduled on 17 April 2018 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426(1A)(b) of the Act.
The Tribunal was required to invite the applicant to attend a hearing before it pursuant s 425 of the Act. That section provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 6 March 2018, an email was sent from the Tribunal to the applicant’s email address provided by the applicant in his review application. Attached to that email was an invitation from the Tribunal to the applicant to attend a hearing at 2.00 pm (WA time) on 17 April 2018, at a specified address which was the Tribunal’s Perth registry (CB 70 to 72).
Notably, in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included (CB 71):
If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
(As per original)
The necessary requirements for a Notice of invitation to appear is set out in s 425A of the Act, which relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
In the present case, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 71 to 72);
(b)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing (CB 71);
(c)was sent to the applicant’s email address provided by him in his review application (CB 71), noting that the email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 42 days prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth); and
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing (CB 72).
It should be further noted that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 6 March 2018), regardless of whether the document was actually received.[14]
[14] SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicant in this matter was properly invited to attend the hearing.
No arguable case of error arises in this regard.
Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance
As outlined by this Court in BHG22[15] (citing ACN22[16]), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it.
[15] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[16] ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744.
Further, ss 425 and 425A of the Act are to be read together.[17] That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
[17] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] (“SZFHC”).
As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Because the applicant had been validly invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not appear at the hearing on 17 April 2018. He does not dispute this.
In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426(1A)(b) of the Act)
The Tribunal, in this matter, chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicant via email sent to his nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received);
(b)after lodging his application for review (on 28 February 2017), there is no evidence that the applicant engaged with or made contact with the Tribunal (until after the Confirmation Decision had been made);
(c)no further material had been provided to the Tribunal by the applicant in support of his review application;
(d)a SMS hearing reminder was sent to the applicant’s nominated mobile number on 10 and 16 April 2018;
(e)the applicant did not appear at the Tribunal hearing at the scheduled time of 2.00 pm (WA time) on 17 April 2018 (CB 70 to 84); and
(f)the Tribunal called the applicant three times between 2.09 pm and 2.12 pm. The calls went to voicemail (CB 77).
The Court further notes that, as was explained in BHG22 (citing Sun[18] and Mohammed[19]), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which an applicant can be notified of the scheduled hearing.[20] This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear.[21]
[18] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[19] Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
[20] SZFHC at [39].
[21] SZFHC at [41].
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal erred by confirming the decision to dismiss the application
Insofar as the applicant raises any concerns in relation to the Tribunal’s Confirmation Decision, the Court notes that applicant was notified (by email) of the Non-Appearance Decision on 17 April 2018 (CB 85 to 90).
The Court notes that, when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 1 May 2018). Relevantly, the letter to the applicant provided as follows (CB 86):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 1 May 2018. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
This letter complied with the requirements of s 426B(6) of the Act.
The applicant did not seek reinstatement or make any contact with the Tribunal prior to the Confirmation Decision being made. Section 426A(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 2 May 2018 (CB 91 to 94).
No arguable case of error arises in relation to the Tribunal’s Confirmation Decision.
Conclusion regarding merits of the substantive application
For the reasons outlined above, the Court is satisfied that the applicant was validly invited to attend the Tribunal hearing and that the Tribunal acted reasonably when exercising its discretion to dismiss the applicant’s review application. The Applicant did not provide any evidence of any contact he has had with the Tribunal, nor with the Department of Home Affairs.
I enquired of the applicant if there was anything in the decision where he says that the Tribunal took into account irrelevant material. The applicant replied no. I enquired of the applicant if the Tribunal ignored any relevant material and the applicant replied that he did not think so. I enquired of the applicant if he thought that the Tribunal was biased or unreasonable or irrational in what they did. The applicant replied yes and I asked the applicant to tell me why. The applicant essentially repeated what he said previously and nothing that he said assisted his case in showing a jurisdictional error in the Tribunal’s decision.
I am satisfied that the Tribunal Member has not failed to do his duty and that the applicant has been provided with procedural fairness.
No arguable case of error arises in this regard.
Insofar as the applicant takes issue with the Tribunal not considering his review application (Ground 3), the Court notes that the Tribunal was not required to do so.
The applicant did not appear at the hearing on 17 April 2018.
In the circumstances, the Tribunal had two options available to it. As outlined above, the Tribunal could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act), or, it could dismiss the applicant’s review application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
The Tribunal in this matter chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal was legislatively empowered to do so and, as outlined above, the Court is satisfied that the Tribunal exercised its discretionary power in that regard reasonably.
No arguable case of error arises in this regard.
Assessed at a reasonably impressionistic level, the applicant’s “grounds of review” and oral evidence before the Court in this matter do not identify any arguable case of jurisdictional error on the part of the Tribunal.
Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The lengthy delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only), are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild . Associate:
Dated: 20 April 2023
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